The obligation which arises from a contract or agreement. In the Roman law the expression was a familiar one, and, taking the result of the discussions of the subject by writers on the civil law, and keeping in view both the ety- mology and the use of the word obligation, we may define it, as there used, to be a tie binding one to the performance of a duty arising from the agreement of parties. The term is resorted to as a relief from what he considers the misuse of the word contract and the difficulty of defining it, by Prof. E. A. Harriman, who uses it in this sense: "Nevertheless in the case of many 'contracts,' using the word in its broadest sense, we find existing an obliga- tion with certain definite characteristics which can easily be recognized. This ob- ligation we shall venture to call contrac- tual." He divides "the endless variety of obligations which the courts enforce" into irrecusable and recusable obligations. The former are those which are imposed upon the person without his consent and without regard to any act of his own; the latter are the result of a voluntary act on the part of the person on whom they are imposed. These terms are adopted by him from an article by Professor John H. Wig- more in 8 Harv. L. Rev. 200, and he again divides recusable obligations into definite and indefinite, meaning thereby to express whether the extent of the undertaking is determined by the act of the party upon whom the obligation rests or not; and to differentiate still further the precise char- acter of definite recusable obligations, which he terms contractual obligations, Professor Harriman originates the terms unifactoral and bifactoral, as the obligation is created by the act of the party bound, or requires two acts, one by the party bound and the other by the party to be benefited. The term contractual was of constant use by writers on the civil law, and Maine, in his Early Law and Custom, refers to the German Salic law as elaborately discussing contractual obligation. Professor Harri- man's definition of this term is "that obli- gation which is imposed by the law in con- sequence of a voluntary act, and which is determined as to its nature and extent by that act." Harr. Cont. 27. The idea of con- tractual obligation he thinks was unknown to our Anglo-Saxon ancestors; id. 15. It is undoubtedly true, as Professor Harriman asserts, that the best considered theory of contract at the present time has been a slow and tedious development; but it is equally true that among the writers who have given most attention to the study of the historical development of the law there remain wide differences of opinion as to the time and mannerof its development. It is likewise to be observed that the theories of Professor Harriman and those who have preceded him, in the views which he has so logically and comprehensively treated, do in fact in- clude much that is familiar to the student of the Roman law, while there is exhibited a reluctance to give to that system due credit for the principles which were fully devel- oped in it. In his preface the author here cited quotes with approval the remark of Sir Frederick Pollock, that English speak- ing lawyers "must seek a genuine philos- ophy of the common law, and not be put off with a surface dressing of Romanized generalities." It may be suggested that when, after centuries of an unscientific de- velopment of the English law of contract (due to causes which Professor Harriman well sketches in Part II. of his introduc- tion), what seems to be not only a better, but the true theory has come to be recog- nized and developed; the coincidence of that theory with the root idea of the subject, as expressed in so scientific a system as the Roman law, should be acknowledged and utilized, rather than ignored, or character- ized as "recasting English ideas and in- stitutions in a Roman mould." It may be safely asserted that neither contract nor contractual obligation is an English idea or institution, but an idea of human civiliza- tion. Sir Henry Maine says we have no society disclosed to us destitute of the con- ception; Anc. Law 303. It is equally cred- itable to us to have discovered and dé- veloped the correct idea of it after it has been overlaid with the misconceptions of the common law, as to its true nature, as it was to the Civilians to have formulated it correctly as part of their scientifically con- structed system. That a concurrence is reached by these distinct processes is strong confirmation of the accuracy of the result. The limits of this work forbid the elabora- tion of this subject to which it is entitled, and the reader is referred to Harriman, Con- tracts: Keener, Quasi-Contracts; Maine, Ancient Law, ch. ix.; Holmes, Common Law; Sandars, Inst. of Justinian; Howe, Studies in the Civil Law, which latter work contains an admirable statement of the sub- ject of obligations in the Roman law.